Angela K. Scoutten, V Michael Je Scoutten ( 2019 )

Filed
Washington State
Court of Appeals
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
Division Two
DIVISION II February 26, 2019
In the Matter of the Marriage of: No. 50159-7-II
ANGELA K. SCOUTTEN, n/k/a
SCHREINER,
Appellant, UNPUBLISHED OPINION
v.
MICHAEL J. E. SCOUTTEN,
Respondent.
BJORGEN, J.P.T.* — Angela Scoutten, now Angela Schreiner,1 appeals from a contempt
order entered by the superior court commissioner for violations of a court ordered parenting plan.
Schreiner argues that the court erred by (1) allowing the entry of reply declarations, (2)
holding the contempt hearing, (3) finding her in contempt for violating the parenting plan’s
residential provisions, health care provisions, and paragraph 3.10, (4) issuing the contempt order
outside of her presence and without her signature, and (5) imposing sanctions. She also objects
to the trial court’s award of attorney fees.
We reverse the trial court’s determination of contempt based on Schreiner’s alleged
violations of the residential and health care provisions of the parenting plan, but affirm its
determination of contempt based on Schreiner’s violation of paragraph 3.10 of the plan. We
*
Judge Bjorgen is serving as a judge pro tempore for the Court of Appeals, pursuant to RCW
2.06.150.
1
For the sake of clarity, we refer to her as Schreiner. No disrespect is intended.
No. 50159-7-II
hold against Schreiner on her remaining claims. We remand for the court to enter findings in
support of its attorney fee award and to reassess the appropriate sanction and attorney fee award
in light of our reversal of two of the bases for contempt.
FACTS
Schreiner was previously married to Michael Scoutten, with whom she had a daughter,
M.S. After their divorce, Michael married Monica Scott, now Monica Scoutten.2 Schreiner
originally had primary custody of M.S., but on July 24, 2015, Scoutten successfully obtained a
modification to the parenting plan giving him custody of M.S., with Schreiner restricted to
alternating weekend visits.
Paragraph 4.2 of the parenting plan vests Scoutten with all major decision-making
authority with respect to M.S.’s education and nonemergency health care, among other matters.
The plan gives the parents equal authority to confer with schools on M.S.’s progress, access
school records, and give parental consent while M.S. is in their respective care. The plan also
empowers both parents to obtain emergency health care for M.S, but requires each to notify the
other if they do so. The plan forbids Schreiner from leaving M.S. in the “care or custody of any
adult other than [Schreiner’s mother] or a person approved by [Scoutten].” Clerk’s Papers (CP)
at 190. We upheld the plan on appeal in an unpublished opinion. In re Marriage of Scoutten v.
Scoutten, No. 48027-1, slip op. at 196 Wn. App. 1039 (Wash. Ct. App.) (October 25, 2016)
(unpublished), http://www.courts.wa.gov/opinions/pdf/480271.pdf.
The week after the plan was finalized, Scoutten executed a special power of attorney,
granting power of attorney to Monica whenever he is on active duty as a result of his military
2
For the sake of clarity, we will refer to Michael Scoutten as Scoutten and Monica Scoutten as
Monica. We intend no disrespect.
2
No. 50159-7-II
service. Through the power of attorney, Scoutten granted to Monica his decision-making
authority under paragraph 4.2 of the parenting plan. He also granted Monica “full power and
authority to do and perform all and every act and thing whatsoever requisite and necessary to be
done in and about the premises, as fully to all intents and purposes as [Scoutten] might or could
do if personally present.” CP at 185.
Scoutten contends that Schreiner challenged the power of attorney in superior court
where it was upheld and that Schreiner did not file an appeal. However, the superior court’s
order on this matter does not mention the power of attorney and instead merely confirms
Scoutten’s ability to continue parenting while on active duty deployment without modifying the
parenting plan under RCW 26.09.260(11)-(12). The record does not show whether Schreiner
had notice of the power of attorney.
One day in November 2016, Schreiner picked M.S. up from Scoutten’s house to discover
that M.S. had a bruise on her forehead, allegedly because Monica had thrown a cellphone at her.
Schreiner took M.S. to the emergency room, and the hospital classified the case as an emergency
and contacted Child Protective Services (CPS) and the Tacoma Police Department. Monica
claims that Schreiner did not notify her of the emergency room visit and that the phone had
merely fallen on M.S. while Monica was upstairs caring for her son (M.S.’s half-brother). CPS
investigated to determine whether this was a case of domestic abuse by Monica, but ultimately
found that the case was “low risk” and there was “no finding for abuse or neglect.” CP at 73.
On November 27, Schreiner failed to return M.S. to Monica at the end of her visitation
time. On November 28, Scoutten obtained a restraining order against Schreiner to prevent her
from coming near Scoutten’s home or into M.S.’s school.
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No. 50159-7-II
On January 31, 2017, Scoutten filed a motion for contempt, alleging that Schreiner
violated several provisions of the parenting plan. Scoutten alleged that (1) Schreiner failed and
refused to return M.S. at the conclusion of her residential time, (2) Schreiner on multiple
occasions took M.S. to the emergency room for nonurgent medical issues, such as colds, (3)
Schreiner continued to make rude and derogatory comments to M.S. about Monica, causing
unnecessary discord and emotional stress to M.S., and (4) Schreiner improperly interfered with
M.S.’s education. Scoutten noted that Schreiner had previously been found in contempt and
required to pay Scoutten’s attorney fees, which she had failed to do.3 Scoutten requested that the
court sentence Schreiner to jail time in addition to paying $3,500 for attorney fees. There is no
indication in the record that Scoutten submitted documentation of his attorney fees.
Scoutten also moved for the court’s permission to bring M.S. on vacation with him,
taking advantage of his military leave. Schreiner submitted a response declaration on February
21, 2017, asking the court to reject Scoutten’s request because of her concerns about M.S.
missing school. On February 24, Scoutten submitted a reply declaration rebutting Schreiner’s
concerns and claims, as well as a supplemental declaration by Monica in support of the contempt
motion.
In their declarations, Scoutten and Monica alleged that Schreiner had been coaching M.S.
to make false statements and allegations about Monica and that Schreiner had been misleading
CPS and the court with respect to both her marriage dissolution and custody battle with Scoutten
and the allegations of abuse by Monica. Monica’s declaration identified the specific dates on
which Schreiner was alleged to have failed to return M.S. at the end of her residential time. She
3
The previous contempt order is not in the record before us.
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No. 50159-7-II
also alleged that Schreiner lied to and manipulated the court at a previous hearing, at which
Schreiner had denied (not under oath) being in a relationship with anyone. Monica attached with
her supplemental declaration a field trip consent form from two weeks before this hearing in
which Schreiner identified Brian Hutmacher as an emergency contact and M.S.’s “future Step-
Father.” CP at 230-31.
On February 28, the superior court commissioner heard both the contempt motion and
Scoutten’s request to bring M.S. on vacation, as well as a separate motion filed by Schreiner for
a domestic violence protection order (DVPO) against Monica. Schreiner’s attorney withdrew the
DVPO issue at the outset of the hearing based on new CPS records, and the parties moved
forward with the contempt motion and vacation request.
Schreiner objected to Scoutten’s and Monica’s February 24 declarations and asked the
court to strike them, arguing that it was “fundamentally unfair” to admit them without giving
Schreiner a chance to respond. Verbatim Report of Proceedings (VRP) at 4. The court noted
that the only new issue raised in the declarations that was not initially pled in the contempt
motion related to Schreiner’s actions regarding M.S.’s schooling and determined that the parties
could “deal with that at a different motion if necessary.” VRP at 4. No such motion appears to
have been filed.
At the conclusion of the hearing, the court sided with Scoutten on the vacation issue, but
noted that it needed time to issue a written ruling on the contempt motion. The court and counsel
for both parties agreed that once the court made a decision, the attorneys would draw up the
order and present it ex parte. The court issued a contempt order later that day, without the
signatures of either party or counsel.
5
No. 50159-7-II
The court made several separate findings supporting its contempt holding. First, the
court found that Schreiner had violated the parenting plan’s residential provisions by failing to
return M.S. at the conclusion of her residential time. Second, the court found that Schreiner
violated the plan’s health care provisions by taking M.S. to the emergency room for nonurgent
issues. The court also found that Schreiner violated the parenting plan as described in Scoutten’s
contempt motion, and that Schreiner “continues to provide false information to the Court.” CP at
222. The court elaborated that Schreiner indicated a “future step-father” would be around M.S.
after denying that any male friend would be around her, and that this man was not authorized
under paragraph 3.10 of the parenting plan to have access to M.S. The court further noted that
Schreiner’s allegations against Monica were unsupported by CPS records and continued to
undermine the bond between Scoutten and M.S. while Monica is parenting by power of attorney.
CP at 222.
The court sanctioned Schreiner by imposing an indeterminate jail sentence, but
suspended it subject to conditions, including that Schreiner comply with the parenting plan. CP
at 224. The court also concluded that Scoutten’s attorney fees were incurred and reasonable, and
found that Schreiner continued to “litigate without just cause creating financial hardship on
[Scoutten].” CP at 223. It accordingly entered a money judgment against Schreiner for $3,600,
comprising $3,500 for attorney fees and a $100 civil penalty.
Schreiner appeals the contempt order.
ANALYSIS
I. REPLY DECLARATIONS
Schreiner argues that it was improper for the court to admit Scoutten’s and Monica’s
declarations because they were not filed in accordance with local court rules.
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No. 50159-7-II
The court has broad discretion in permitting the filing of pleadings, and a showing of
prejudice is required for striking pleadings that are untimely filed. Bargreen v. Little, 27 Wn.2d
128, 133, 177 P.2d 85 (1947).
A. Timeliness
Schreiner first argues the declarations were untimely because they were filed “a few days
before the hearing,” and therefore it was “fundamentally unfair” to admit them because they
contained additional testimony beyond the original motion. Br. of Appellant at 13-14. In other
words, she claims that by including additional information those declarations were not “strict”
replies, and so violated Pierce County Superior Court local rules.
PCLSPR 94.04(c)(3) requires that “documents in strict reply to the motion shall be
similarly filed and served no later than 12:00 noon two (2) court days prior to the hearing.” At
the outset we note that only Scoutten’s declaration was submitted “in strict reply” per the local
rules; Monica’s declaration was submitted as a supplement to the underlying contempt motion.
Because Scoutten’s and Monica’s declarations were filed four days before the contempt hearing,
they were timely under Pierce County Superior Court local rules. Schreiner was given adequate
notice to allow her to prepare and respond to the declarations at the contempt hearing.
With respect to Schreiner’s claim that it was “fundamentally unfair” for the declarations
to include additional information, a review of those declarations reveals that they were filed to
rebut claims that Schreiner had made in her responsive declaration or to support claims made in
the underlying motion for a contempt hearing. Specifically, Scoutten’s declaration sought to
rebut Schreiner’s claims that M.S. was missing too much school and failing classes and that
Schreiner had decision-making authority over M.S.’s education. Monica’s declaration was
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No. 50159-7-II
submitted to support Scoutten’s claims in the contempt motion that Schreiner was causing
unnecessary discord and emotional stress to M.S. and that she had violated the parenting plan, as
well as to rebut Schreiner’s previous allegations of abuse.
Although there may have been some additional information contained in the reply
declarations, Schreiner had adequate notice to prepare to respond to them at the hearing. The
additional declarations either rebutted claims Schreiner made in her response declaration or
spoke to issues already in the record before the court. Furthermore, Monica’s declaration was
not filed in strict reply, but rather as a supplemental declaration to the original motion; hence
Schreiner was free to respond to Monica’s declaration before the hearing, in accordance with
Pierce County Superior Court local rule deadlines. Schreiner cites no relevant authority to
support her fairness argument. For these reasons, we reject her argument and hold that the court
did not abuse its discretion.
B. Failure to Strike
Schreiner also argues that the court erred by failing to strike Scoutten’s and Monica’s
declarations. She bases this argument on PCLSPR 94.04(c)(1), which states that all motions
shall be docketed “simultaneously with a motion and Notice of Hearing and any supporting
pleadings.” Schreiner contends that because Scoutten’s and Monica’s declarations were filed
several days later, rather than simultaneously with the contempt motion, it was reversible error
for the court not to strike them.
The court had broad discretion to permit the declarations, and Schreiner has not shown
that she was prejudiced by the delay. Bargreen, 27 Wn.2d at 133. As noted above, the
declarations were still filed in time to provide Schreiner with notice to allow her to prepare for
the hearing. Moreover, when Schreiner’s counsel objected to the declarations filed in reply and
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No. 50159-7-II
recommended that the court strike them, the court noted that the only issue raised in those
declarations that was not pled initially was Schreiner’s interfering with M.S.’s schooling. The
schooling issue only came to the fore after Schreiner alleged that Scoutten was misusing his
leave time to bring M.S. on vacation, prompting Scoutten to respond. The court further stated
that they could “deal with that at a different motion if necessary,” but Schreiner evidently never
filed a motion asking the court to strike the declarations. VRP at 4.
For these reasons, we conclude that Schreiner has not shown that she was prejudiced and
that it was within the court’s discretion not to strike the declarations.
C. Other Claims
Schreiner baldly asserts a violation of her due process right to respond to the reply
declarations under the Fourteenth Amendment to the United States Constitution and article I,
section 10 of the Washington Constitution. We do not reach this argument because she has
failed to provide argument or authority supporting it. RAP 10.3(6); Cowiche Canyon
Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
Schreiner also argues that the court erred by not ordering make up time after a finding of
contempt. Upon a finding of contempt, the court shall order “[t]he noncomplying parent to
provide the moving party additional time with the child.” RCW 26.09.160(2)(b)(i). As
Schreiner is the noncomplying parent in this case, addressing this alleged error would provide
her no relief. Scoutten has declined to pursue this line of inquiry, and so do we.
II. CONTEMPT HEARING
Schreiner makes two arguments that the court erred in holding the contempt hearing.
Each argument fails.
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No. 50159-7-II
A. Jurisdiction
Schreiner argues that the court lacked jurisdiction to hold the hearing. Schreiner claims
she never received an order to show cause and contends that Pierce County local rules require an
order to show cause in order to appear before the court on a contempt charge. She also argues
that because the hearing was originally scheduled to hear the DVPO issue, once she dropped that
issue it was improper for the court to turn to Scoutten’s contempt motion without notifying her.
Schreiner does not cite to the record or specific local court rules to support these claims,
nor does she cite to any relevant legal authority to demonstrate why it was improper for the court
to hold a single hearing to address two related matters where her attorney was present, did not
object, and appeared capable and prepared to argue both causes. We accordingly decline to
consider this argument. RAP 10.3(6); Cowiche Canyon Conservancy, 118 Wn.2d at 809.
B. Right to Counsel
Schreiner also argues that she was deprived of her right to counsel because her attorney
was hired to represent her in the DVPO matter, not the contempt action. Outside the purely
criminal area, “the appointment of counsel is constitutionally required only when procedural
fairness demands it.” Tetro v. Tetro, 86 Wn.2d 252, 253, 544 P.2d 17 (1975). In proceedings
civil in form but criminal in nature, the right to counsel “is clearly part of due process.” Id.Hence, “wherever a contempt adjudication may result in incarceration, the person accused of
contempt must be provided with state-paid counsel if he or she is unable to afford private
representation.” Id. at 255.
Although Schreiner is correct that she was entitled to counsel, her argument that she was
deprived of that right fails. The right to state-paid counsel in contempt proceedings only applies
if the person accused of contempt “is unable to afford private representation.” Id. Schreiner
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No. 50159-7-II
does not argue or show that she could not afford a private attorney. Moreover, regardless of her
arguments above, her attorney did in fact competently represent her on the contempt issue. We
hold that Schreiner’s right to counsel was not violated.
III. CONTEMPT FINDING
Schreiner argues that the court abused its discretion in holding her in contempt for
violating the parenting plan because it misinterpreted the parenting plan and its findings were
unsupported by substantial evidence. Specifically, she challenges the court’s findings that she
violated (1) the parenting plan’s residential provisions by not returning M.S. to Monica, (2) the
plan’s health care provisions by taking M.S. to the emergency room, and (3) paragraph 3.10 of
the plan by listing Hutmacher as M.S.’s “future step-father” on the school permission slip form.
A. Legal Principles and Standard of Review
We review contempt rulings for an abuse of discretion. Dep’t of Ecology v. Tiger Oil
Corp., 166 Wn. App. 720, 768, 271 P.3d 331 (2012). “‘Whether contempt is warranted in a
particular case is a matter within the sound discretion of the trial court; unless that discretion is
abused, it should not be disturbed on appeal.’” Moreman v. Butcher, 126 Wn.2d 36, 40, 891
P.2d 725 (1995) (quoting In re Pers. Restraint of King, 110 Wn.2d 793, 798, 756 P.2d 1303(1988)). A trial court abuses its discretion if its contempt decision was manifestly unreasonable
or based on untenable grounds. Holiday v. City of Moses Lake, 157 Wn. App. 347, 355, 236
P.3d 981 (2010). In addition, a contempt ruling based on an erroneous view of the law or an
incorrect legal analysis constitutes an abuse of discretion. In re Estates of Smaldino, 151 Wn.
App. 356, 364, 212 P.3d 579 (2009).
We review findings of fact in a contempt order for substantial evidence. In re Marriage
of Rideout, 150 Wn.2d 337, 351, 77 P.3d 1174 (2003). Substantial evidence exists so long as a
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No. 50159-7-II
rational trier of fact could find the necessary facts were shown by a preponderance of the
evidence. In re Welfare of A.W., 182 Wn.2d 689, 711, 344 P.3d 1186 (2015). Unchallenged
findings of fact are verities on appeal. Merriman v. Cokeley, 168 Wn.2d 627, 631, 230 P.3d 162(2010). In determining whether the findings of fact support a conclusion of contempt, we strictly
construe the order alleged to have been violated, and the facts must constitute a plain violation of
the order. In re Marriage of Humphreys, 79 Wn. App. 596, 599, 903 P.2d 1012 (1995). The
weighing of evidence and the determination of credibility is left to the trier of fact. A.W., 182
Wn.2d at 711.
If a court finds that a person has failed or refused to perform an act that is within her
power to perform, it may find that person in contempt of court. RCW 7.21.030(2). Contempt of
court includes intentional “[d]isobedience of any lawful judgment, decree, order, or process of
the court.” RCW 7.21.010(1)(b).
In the context of family law proceedings such as this, there are two relevant instances
where a court is required to hold a parent in contempt. First, if the court finds that a parent has
made an attempt to refuse to perform a duty or hinder the other parent’s performance of a duty
provided in a parenting plan, it shall deem that refusal to be in bad faith and shall punish that
parent by holding the parent in contempt of court. RCW 26.09.160(1). Second, if the court finds
after a hearing that a parent has failed to comply with the residential provisions of a parenting
plan in bad faith, “the court shall find the parent in contempt of court.” RCW 26.09.160(2)(b).
Bad faith is required in both cases for a finding of contempt; the difference is that a refusal to
perform a duty of the parenting plan is always deemed to be in bad faith, whereas a failure to
comply with residential provisions must be determined to have been in bad faith after a hearing.
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No. 50159-7-II
When determining whether a violation warranting contempt has occurred in either of
these circumstances, the trial court shall deem the parent to have the ability to comply with the
parenting plan. RCW 26.09.160(4). To avoid being held in contempt for a violation of a
parenting plan, a noncomplying parent must establish by a preponderance of the evidence that he
or she lacked the ability to comply or had a reasonable excuse for noncompliance. Rideout, 150
Wn.2d at 352-53.
B. Residential Provisions
Schreiner first argues that the court misinterpreted the residential provisions of the
parenting plan and there was not substantial evidence showing that she violated them by not
returning M.S. to Scoutten at the proper time. The court found:
The parenting/custody order dated July 24, 2015 was not obeyed. Angela Schreiner
did not obey the following parts of the parenting/custody order signed by the court
on
Parenting Time Schedule by failing to return the child at the conclusion of
her residential time.
....
[Schreiner] was able to follow the parenting/custody order. The failure to follow
the order was intentional.
....
[Schreiner] acted in bad faith.
CP at 222.
Schreiner contends that Scoutten’s claim at the contempt hearing that she failed to return
M.S. “on a Sunday” was insufficiently specific to warrant a finding that she actually violated the
parenting plan. Br. of Appellant at 13. In Scoutten’s motion for contempt hearing, he claimed
that Schreiner refused to return M.S. at the conclusion of her residential time as described in
Monica’s declaration. Monica’s declaration explicitly states that Schreiner did not return M.S. to
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No. 50159-7-II
her on November 27, 2016. Monica also claimed that this was the second time Schreiner refused
to return M.S., with the first occurring on September 20, 2015.
Hence, contrary to Schreiner’s claim, there was evidence of a specific instance when she
refused to return M.S. to Monica, who was fulfilling Scoutten’s rights and obligations under the
power of attorney.4 The court used this evidence to find that Schreiner had the ability to follow
the residential provisions of the parenting plan, but intentionally chose not to and did so in bad
faith.
However, despite Scoutten’s assertions to the contrary, there is no evidence in the record
before us that Schreiner had actual notice of Scoutten’s delegation of his parental functions to
Monica through power of attorney. Scoutten claims Schreiner knew of the power of attorney
because they litigated that issue in superior court, but the resulting superior court order makes no
mention of a power of attorney. Rather, it makes findings under RCW 26.09.260(11) to deny
Schreiner’s motion for revision regarding delegation of residential time under RCW
26.09.260(12).
The parenting plan prohibits Schreiner from leaving M.S. in the care or custody of
anyone other than Schreiner’s mother or a person approved by Scoutten. If Schreiner had no
notice of the power of attorney, then it would not have been in bad faith for her not to return
M.S. to Monica while Scoutten was on leave, because she arguably would just have been
following the parenting plan. The record before us does not contain evidence that Schreiner
knew of the power of attorney delegating Scoutten’s parental obligations under the parenting
4
As noted below, we do not decide whether a power of attorney may in fact be used for this
purpose.
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No. 50159-7-II
plan to Monica. Hence, the record lacks substantial evidence supporting the court’s finding that
Schreiner violated the parenting plan’s residential provisions in bad faith.
Because we hold that this finding was not supported by substantial evidence based on
Schreiner’s apparent lack of notice, we acknowledge but do not reach her other arguments
regarding the court’s interpretation of the parenting plan or the validity of the power of attorney,
including the issue of whether a parent may delegate parental responsibilities under a court-
ordered parenting plan through a power of attorney. 5
C. Health Care Provisions
Schreiner next argues that the court erred by finding that she violated the provision
relating to M.S.’s health care by taking M.S. to the emergency room for nonurgent medical
issues. The court found:
The parenting/custody order dated July 24, 2015 was not obeyed. Angela Schreiner
did not obey the following parts of the parenting/custody order signed by the court.
....
Decision-making by taking the child to the Emergency Room for non-
urgent medical issues.
....
[Schreiner] was able to follow the parenting/custody order. The failure to follow
the order was intentional.
....
[Schreiner] acted in bad faith.
CP at 222.
The parenting plan provides that both parents are authorized to “obtain emergency health
care for the child without the consent of the other parent.” CP at 195. Schreiner argues that even
if the incident was not an emergency, the parenting plan does not explicitly forbid her from
5
These arguments include issues 1, 2, 3, 4, and 5 in Schreiner’s issues pertaining to assignments
of error, as well as her argument on page 7 of her brief.
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No. 50159-7-II
taking M.S. to the emergency room for a “non-emergency.” Br. of Appellant at 24. This
contention is wrong; the parenting plan explicitly grants Scoutten sole decision-making authority
over nonemergency health care; Schreiner is authorized to obtain emergency health care only.
Schreiner also contends that she took M.S. to the emergency room because M.S. claimed
Monica had thrown a cell phone at her head, causing a bruise. Hence, Schreiner argues, she was
within her rights to obtain emergency health care for M.S. because she believed there was an
emergency.
Scoutten counters, through Monica’s declaration, that this was in bad faith because CPS
ultimately found that the case was “low risk” and there was “no finding for abuse or neglect.”
CP at 73. Monica also claimed that the phone had simply fallen on M.S.’s head while Monica
was upstairs caring for her son. But as Schreiner points out, CPS investigated the incident
because the hospital classified the case as an emergency and contacted CPS and the Tacoma
Police Department. Schreiner essentially argues that, even if she technically violated the order
by bringing M.S. to the emergency room for a nonemergency, it was not in bad faith because she
reasonably believed the incident was an emergency at the time.
The court did not specify on what grounds this finding supported contempt. We conclude
that the court interpreted this incident as an intentional disobedience of a lawful court order
under RCW 7.21.010(1)(b) and analyze it under that provision. Hence, holding Schreiner in
contempt based on this finding was a discretionary decision of the court based on Schreiner’s
alleged intentional disobedience of the court-ordered parenting plan. The pertinent inquiry,
therefore, is whether substantial evidence supported a finding that Schreiner intentionally
disobeyed the provision reserving all nonemergency health care decisions to Scoutten.
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No. 50159-7-II
We hold that this finding was not supported by substantial evidence. Even if we accept
Monica’s version of events and do not rely on Schreiner’s, the record shows that M.S had a
bruise on her forehead that was caused by a cell phone falling off a table and onto her. The
record shows that Schreiner took her daughter to the emergency room for that bruise and the
incident ultimately was found not to be serious, but it is not clear how severe the bruise looked at
the time or what caused it. Although the court found that Schreiner took M.S. to the emergency
room “for non-urgent medical issues,” the court had the benefit of hindsight not available to a
concerned mother caring for a potentially injured child.
We are left, on this record, with a mother taking her child to the emergency room for a
bruise on the child’s head of unknown severity. Even deferring to the court’s weighing of
evidence and determinations of credibility, this evidence does not support a finding that
Schreiner intentionally disobeyed the parenting plan in bad faith by obtaining emergency
medical treatment for her child in these circumstances. See A.W., 182 Wn.2d at 711. This
finding is not supported by substantial evidence.
D. Paragraph 3.10
Schreiner also objects to the court’s finding that she violated paragraph 3.10 of the
parenting plan by listing Hutmacher as an emergency contact and as M.S.’s “future Step-Father”
on a school permission slip. Br. of Appellant at 26-27; CP at 230-31. The court found:
Angela Schreiner continues to provide false information to the court. School
records indicate on a contact list that a man described as “future step-father” would
be around the child after denying any male friend would be around the child.
Additionally the records show that she was willing to allow a person not authorized
under paragraph 3.10 to have access to the child.
....
[Schreiner] was able to follow the parenting/custody order. The failure to follow
the order was intentional.
....
[Schreiner] acted in bad faith.
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No. 50159-7-II
CP at 222.
Scoutten asked the court to hold Schreiner in contempt in part because she had previously
come before the court and stated that she was not in a relationship with anyone who would be
spending time with M.S., when just two weeks prior she had put down another man, Hutmacher,
as M.S.’s “future Step-Father” and emergency contact on the school permission slip. CP at 217-
18. Schreiner argues that because she was not under oath when she denied having a significant
other that might be spending time with M.S., she cannot be found in contempt for lying to the
court.
We stress that the absence of an oath does not relieve an individual of the consequences
of lying to the court. However, we need not address that issue because Schreiner’s alleged false
statement about Hutmacher was not the only basis for the court’s finding that she violated the
parenting plan. The violation of paragraph 3.10 stemmed from her listing Hutmacher as M.S.’s
future stepfather and emergency contact for M.S.’s school, which the court interpreted as
suggesting that Schreiner was allowing someone to have access to M.S. who was not authorized
by the parenting plan.
Schreiner argues that the parenting plan does not prevent her friends or family from
having contact with or access to M.S. Paragraph 3.10 of the plan merely forbids her from
leaving M.S. “in the care or custody of any adult” other than Schreiner’s mother or a person
approved by Scoutten. CP at 190. She contends that because there was no evidence that she had
actually left M.S. in the care of Hutmacher, there could not have been a violation of that
provision.
However, the fact that Schreiner listed Hutmacher as an emergency contact and “future
step-father” on the permission slip certainly suggests that she is leaving M.S. in his care. After
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all, should an emergency arise during a field trip, one would expect the listed emergency contact
to be responsible for caring for a child affected by that emergency. Moreover, it would be
reasonable for a trier of fact to conclude that someone identified as M.S.’s “future step-father”
would from time to time have her in his care or custody.
We defer to the trial court on its weighing of evidence and determinations of credibility.
A.W., 182 Wn.2d at 711. A rational trier of fact could have found by a preponderance of the
evidence that Schreiner was leaving M.S. in the care of someone not authorized by paragraph
3.10 of the parenting plan. Id. We accordingly hold that substantial evidence supports this
finding.
It is unclear from the contempt order whether the court held Schreiner in contempt under
RCW 7.21.010 or RCW 26.09.160.6 However, this violation of the parenting plan was a proper
basis for finding contempt under either statute. If the court found that Schreiner refused to
perform her duty under the parenting plan to not leave M.S. in the care or custody of someone
not authorized by the parenting plan, it was required to deem that refusal to be in bad faith and
punish Schreiner by holding her in contempt. RCW 26.09.160(1). If the court instead found that
Schreiner intentionally failed or refused to perform an act that was within her power to perform,
it was permitted to find her in contempt of court. RCW 7.21.030(2). Contempt of court includes
intentional “[d]isobedience of any lawful judgment, decree, order, or process of the court,”
which would include a provision of a court-ordered parenting plan. RCW 7.21.010(1)(b).
Because substantial evidence supported the finding that Schreiner was leaving M.S. in the
care or custody of someone not authorized by the plan, it was within the court’s discretion to
6
The contempt order simply identifies “RCW 26.09.160, 7.21.010” in the footer of each page of
the order.
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hold her in contempt for this violation under either statute. See Moreman, 126 Wn.2d at 40. We
accordingly uphold the court’s determination of contempt on this basis.
IV. PRESENTATION AND SIGNING OF CONTEMPT ORDER
Schreiner argues the court erred by not allowing her to be at the hearing for the contempt
order or review the order before presentation. She cites PCLSPR 94.04(c)(8), which states that
attorneys and self-represented parties shall have proposed orders prepared for
presentation to the court at the time of the hearing . . . at the conclusion of the
motion and shall remain in attendance in the court until the appropriate order(s) has
been signed by counsel, all parties, and the court.
Schreiner reasons that because the contempt hearing ended and the parties left the courtroom
without a completed written order, the court violated PCLSPR 94.04(c)(8).
Schreiner ignores the fact that the court had yet to rule on the motion for contempt, so
there had been no “conclusion” of the motion when the hearing adjourned. See PCLSPR
94.04(c)(8). The court adjourned to consider its ruling on the motion and directed the attorneys
for both parties to draw up the proposed order and present it later ex parte. Hence, the
“conclusion of the motion” occurred when the court made its decision and signed the contempt
order drawn up by the parties. See PCLSPR 94.04(c)(8). Excusing the parties at the end of the
hearing was not a violation of court rules.
Schreiner also contends that it was error not to notify her to come to the presentation of
the order and provide her an opportunity to sign or object to it. For all family law motions,
PCLSPR 94.04(c)(8) requires attorneys to remain in attendance in the court from the conclusion
of the motion until signature, but does not require the same of the parties unless they are self-
represented.
Even if we assume without deciding that it was error for the court to not have Schreiner
sign the contempt order, Schreiner has not shown that she was at all prejudiced. See Thomas v.
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No. 50159-7-II
French, 99 Wn.2d 95, 104, 659 P.2d 1097 (1983) (“[E]rror without prejudice is not grounds for
reversal.”). Schreiner’s own attorney worked with Scoutten’s attorney to draw up the order and
present it to the court. Schreiner has not alleged that she lacked notice that she was being found
in contempt, and the cooperation of her attorney suggests that she was aware of the order and
acquiesced to the court’s authority to issue it. We conclude Schreiner was not prejudiced, and
her argument fails.
V. SANCTIONS
Schreiner argues the court erred by issuing punitive sanctions for contempt, instead of
remedial sanctions. We disagree.
A. Legal Principles and Standard of Review
“‘Punishment for contempt of court is within the sound discretion of the judge so ruling.
Unless there is an abuse of a trial court’s exercise of discretion, it will not be disturbed on
appeal.’” Schuster v. Schuster, 90 Wn.2d 626, 630, 585 P.2d 130 (1978) (quoting State v.
Caffrey, 70 Wn.2d 120, 122-23, 422 P.2d 307 (1966)).
Washington law distinguishes between punitive and remedial sanctions for contempt.
State v. Hobble, 126 Wn.2d 283, 292, 892 P.2d 85 (1995). A punitive sanction is “imposed to
punish a past contempt of court for the purpose of upholding the authority of the court.” RCW
7.21.010(2). A remedial sanction is “imposed for the purpose of coercing performance when the
contempt consists of the omission or refusal to perform an act that is yet in the person’s power to
perform.” RCW 7.21.010(3).
A court may impose a remedial sanction on the motion of a person aggrieved by a
contempt of court in the proceeding to which the contempt is related. RCW 7.21.030(1). If the
court finds that one “has failed or refused to perform an act that is yet within the person’s power
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No. 50159-7-II
to perform,” it may impose a term of imprisonment. RCW 7.21.030(2)(a). The court may also
order the person found in contempt to pay the other party for any losses suffered by that party as
a result of the contempt and any costs incurred in connection with the contempt proceeding,
including reasonable attorney fees. RCW 7.21.030(3).
B. Punitive vs. Remedial Sanctions
Schreiner’s conclusory contention that the court imposed punitive sanctions rather than
remedial sanctions is mistaken. Contrary to Schreiner’s assertion, the sanctions issued here were
not “imposed to punish a past contempt of court.” RCW 7.21.010(2). Instead, the court-imposed
sanctions to coerce Schreiner to perform the acts required of her in the parenting plan after a
showing that she had failed or refused to do so. RCW 7.21.010(3). This included her failure to
obtain Scoutten’s approval before leaving M.S. in the care of someone not authorized by the
plan. The imposition of an indeterminate, suspended jail sentence was clearly intended to coerce
Schreiner to comply with the parenting plan in the future, as the suspension of the sentence was
conditioned on Schreiner obeying the terms of the plan, among other conditions. We conclude
that the sanctions were remedial, not punitive.
Schreiner also reiterates her attorney’s argument that the indeterminate suspended jail
sentence was improper because it essentially sentenced her to jail time for unpaid attorney fees.
Although Scoutten asked the court to impose a jail sentence based on Schreiner’s refusal to pay
attorney fees associated with the previous contempt finding, this was not the basis on which the
court ordered the indeterminate, suspended jail sentence. As the court pointed out, Schreiner
may be sentenced to jail time for other violations, such as failing or refusing to comply with the
parenting plan. RCW 7.21.030(2). Indeed, the contempt order stated that Schreiner’s suspended
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No. 50159-7-II
jail sentence was issued “for violation of the parenting plan” and made no mention of attorney
fees within that provision. CP at 224. This argument fails.
For these reasons, we hold that the court did not abuse its discretion in imposing remedial
sanctions.
ATTORNEY FEES
The court awarded Scoutten attorney fees associated with the contempt proceeding.
Schreiner argues the calculation of the award was improper because Scoutten provided no
argument or documentation in support of his proposed attorney fees.
RCW 26.09.160(2)(b)(ii)-(iii) provides that the trial court, upon a finding of contempt,
“shall” order the noncomplying parent “to pay, to the moving party, all court costs and
reasonable attorneys’ fees incurred as a result of the noncompliance, and . . . a civil penalty, not
less than the sum of one hundred dollars.” Hence, in this contempt action it was mandatory for
the court to order Schreiner to pay attorney fees and a civil penalty to Scoutten. See In re
Marriage of Myers, 123 Wn. App. 889, 893, 99 P.3d 398 (2004).
Schreiner disputes the amount of the fee award. While the imposition of attorney fees in
this case is mandatory, the amount is within the trial court’s discretion. In re Parentage of
Schroeder, 106 Wn. App. 343, 353, 22 P.3d 1280 (2001). Any attorney fees awarded for
contempt proceedings must relate to the costs of bringing those proceedings, not some prior
proceeding. Id. at 353-54.
In reviewing the trial court’s decision for an abuse of discretion, we determine whether it
was manifestly unreasonable or clearly untenable. In re Marriage of Obaidi & Qayoum, 154
Wn. App. 609, 617, 226 P.3d 787 (2010). “To withstand appeal, a fee award must be
accompanied by findings of fact and conclusions of law to establish a record adequate for
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No. 50159-7-II
review.” Eagle Point Condo. Owners Ass’n v. Coy, 102 Wn. App. 697, 715, 9 P.3d 898 (2000).
“If the trial court does not make findings of fact and conclusions of law supporting the attorney
fees award, the preferred remedy is to remand to the trial court for entry of proper findings and
conclusions.” White v. Clark County, 188 Wn. App. 622, 639, 354 P.3d 38 (2015).
There is no indication in the record that Scoutten provided any evidence of the attorney
fees he incurred to support his request for $3,500 in attorney fees at the contempt hearing. Nor is
there an indication that the court properly separated his fees associated with the contempt hearing
from his fees incurred elsewhere in litigation with Schreiner. The court found simply that his
attorney fees were reasonable and in fact incurred, and noted that Schreiner “continues to litigate
without just cause creating financial hardship on [Scoutten].” CP at 223. We hold that the
court’s findings constitute an inadequate record for review, and remand to the court for entry of
proper findings. See White, 188 Wn. App. at 639.
Scoutten also asks for attorney fees associated with this appeal, pursuant to RAP 18.1(b).
On appeal, the appellate court may, in its discretion, order a party to pay for the cost to the other
party of maintaining the appeal and attorney fees. RCW 26.09.140.
Scoutten makes no argument apart from a bare assertion that he “should be provided with
some relief from all the attorney’s fees and costs he has been forced to incur because of not only
the contemptuous behavior by Ms. Schreiner but her continued abuse of the judicial process as
well.” Suppl. Br. of Resp’t at 6. RAP 18.1(b) requires more than this “bald request” for attorney
fees on appeal; it requires argument and citation to authority to advise us of the appropriate
grounds for an award of attorney fees and costs. Bay v. Jensen, 147 Wn. App. 641, 661, 196
P.3d 753 (2008). We accordingly reject Scoutten’s request for attorney fees on appeal.
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CONCLUSION
We reverse the court’s ruling of contempt with respect to Schreiner’s alleged violations
of the parenting plan’s residential and health care provisions. We affirm the court’s ruling of
contempt with respect to Schreiner’s violation of paragraph 3.10 of the plan. We otherwise
affirm the order but remand for entry of findings supporting the attorney fees calculation. On
remand, the court shall reevaluate the appropriate sanction for contempt and the attorney fee
award in light of our decision reversing two of the bases for contempt.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Bjorgen, J.P.T.
We concur:
Lee, A.C.J.
Sutton, J.
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